Using “Orphan Works”

According to the Duke University Center for the Study of the Public Domain, “orphan works” are a big problem for libraries, museums, filmmakers, and others.

“Orphan Works” probably comprise the majority of the record of 20th century culture. These works are still presumably under copyright (only works published before 1923 are conclusively in the public domain), but the copyright owner cannot be found. The default response of archivists, libraries, film restorers, artists, scholars, educators, publishers, and others is to drop copyrighted work unless it is clearly in the public domain. As a result, orphan works are not used in new creative efforts or made available to the public due to uncertainty over their copyright status, even when there is no longer anyone claiming copyright ownership, or the owner no longer has any objection to such use.”

How do these works get orphaned?  One principal reason is that all intellectual property is copyrighted by default.  Under current copyright law, all original expression qualifies for copyright as soon as it is fixed in a medium (for example, printed) regardless of whether the owner of the intellectual property registers the copyright, or attaches the copyright symbol to the work.

How does this problem affect the OWHL?

The Academy Archives and the OWHL Special Collections both include materials that support the Academy curriculum and are of interest to our alumni and to outside scholars and researchers.  We can provide the best access to these materials by digitizing them and making them available in organized collections.  Some of these works are copyrighted, and “orphaned.”  Because of the difficulty of locating the rights holders of the orphan works, we have elected to limit our projects to only those materials which are out of copyright, or for which we hold the copyright.

We are not alone.  The Library Copyright Alliance (LCA), which includes the American Association of Law Libraries (AALL), the American Library Association (ALA), the Association of Research Libraries (ARL), the Medical Library Association (MLA), and the Special Libraries Association (SLA) stated that the problem of orphan works “prevents libraries, at the research, university, and local levels, from providing broad public access to information.”

What should be done to solve the problem of orphan works?

Many professional organizations and academic institutions advocate the development of a set of “best practices for the use of orphan works.”  The practices would require a documented, diligent search for the rights holder by the prospective user.  If no owner is found, the material may be used, with appropriate attribution.  If the owner subsequently appears, the monetary damages for unauthorized use would be very limited.

The US Copyright Office has recommended a similar approach:

  • General search standard (“reasonably diligent”)
  • Attribution to author and copyright owner
  • “Reasonable compensation”
  • Owner entitled to injunction? It depends.
  • 10-year sunset for provision

Reports and Proposals on how to solve the problem of Orphan Works

Proposal to the Copyright Office on Access to Orphan Works and Orphan Films . Duke Center for the Study of the Public Domain

Proposal regarding orphan works. Library of Congress Copyright Office

Report on Orphan Works by the Register of Copyrights.  This 133-page document was published in January, 2006. The Office found that although not easily quantifiable, the problem of orphan works was real and warranted a legislative solution.  The report offers such as solution, and served as the basis of proposed legislation.

Statement of Best Practices for Orphan Works by the American Society of Archivists.

There have been a flurry of recent legislative proposals, but none have been signed into law. HR5439 was introduced in 2006 by Congressman Lamar Smith. This bill would have:

  • Defined reasonable search in detail
  • Required owner to prove “reasonable compensation” and provided definition of that term
  • Allowed court to award owner costs/fees if user failed to negotiate in good faith
  • Addressed state sovereign immunity
  • Directed Copyright Office to study feasibility of alternatives to filing suit in Federal Court

The House IP Subcommittee passed the Orphan Works Act of 2006 and forwarded it to the full committee. However, no other action was taken by the full Judiciary Committee on the bill. Instead, in September 2006, Congressman Lamar Smith combined provisions of the bill with other bills and introduced them as the “Copyright Modernization Act of 2006” (H.R. 6052).  This act was not passed.

    During 2008, S. 2913, the Shawn Bentley Orphan Works Act of 2008 was introduced in the Senate. This bill placed very specific requirements on the required search and mandated that the search had to be based on “recommended best practices.”  Best practices would vary depending on the type of work, with variations for literary works, musical works, dramatic works, etc.

      House:  H.R. 5889: The Orphan Works Act of 2008). This legislation charged the Copyright Office with creating and maintaining an archive for users’ notices.  The notices were required to include:

      • the type of work being used;
      • a description of the work;
      • a summary of the search;
      • to the extent it was known, the owner, author, recognized title, and any other identifying element of the work;
      • a certification that the user performed a qualifying search to find the owner; and
      • the name of the user and how the work would be used.

      Neither bill was signed into law.

      Google Books and Orphan Works

      One of the arguments in favor of Google’s proposed settlement agreement with the publishers who brought suit over copyright infringement of the Google Books project was that it would make orphan works both “discoverable” and available for legal use.  This opinion was advanced by Roy Blount in this blog post.    Let’s Not Lose Our Heads Over a “Monopoly” of Orphans

      The Author’s Guild has further published a statement on the benefits of the Google Books Settlement. Unlocking a Vast Archive of Out-of-Print Books: An Outline of Google Book Settlement Benefits

      Resources

      Duke University Center for the Study of the Public Domain. (n. d.). Orphan Works.

      Harper, G. K. (2007). The Public Domain and Orphan Works. Copyright Crash Course. Retrieved August 27, 2008 from http://copyright.lib.utexas.edu/pdandorphan.html

      United States Copyright Office. (2006). Orphan Works. Retrieved August 27, 2008, from http://www.copyright.gov/orphan/

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